RIAA: MediaSentry attacks based on “entirely fictional” laws

As P2P file-sharing defendant Jammie Thomas prepares for her retrial this …

Jammie Thomas-Rasset, whose P2P file-sharing retrial begins June 15 in Minneapolis, has a new lawyer named "Kiwi" Camara, and he's doing all he can to have the main evidence against her tossed out. Camara has attacked MediaSentry, the firm that investigated the case on behalf of the RIAA, then went further to attack the ethics of all the lawyers involved.

The RIAA has just dropped a scathing filing of its own on the court, saying that Camara's motion to dismiss is "premised on an entirely fictional set of facts and law" and that the ethics claim is "merely an unfortunate and unprofessional attack made in a desperate attempt to suppress evidence that Defendant and her counsel know is ruinous to her defense." Such an accusation "merits no further response."

There's nothing like condescension, hostility, and personal dislike to keep a court battle interesting; judging from the recent filings by both legal teams, this case will be a fiery one. Reading the RIAA response, one can practically see the disdain dripping from the page. In the view of recording industry lawyers, the debate over MediaSentry is little more than a circus sideshow.

That's because MediaSentry collected only publicly available information which was sent to its machines over the public Internet. Investigators did not "break into" anyone's machine, they did not "wiretap" anyone's communications, and they were not "private investigators" because they simply noted some very public information.

"It cannot be a violation of either the ethics rules or the law to log on to a peer-to-peer network," says the RIAA, "as any other user of the network could do, request copyrighted files being offered by users on the network, and then record the information sent. Indeed, Defendant has not—and cannot—cite a single authority that holds this conduct to be violative of laws or ethics."

One of Camara's arguments against MediaSentry was that the company had not secured a private investigator license in the state of Minnesota. This is a charge that has repeatedly been made against the company in states like North Carolina, Michigan, Oregon, and Massachusetts, but it's one that the recording industry has repeatedly called baseless. In this case, RIAA lawyers say that MediaSentry did not violate the Minnesota Private Detectives Act (MPDA) because, quite simply, it has never operated in the state of Minnesota.

"The MPDA does not apply to persons or companies operating outside of the State of Minnesota," says the new filing. "Minnesota's licensing scheme cannot apply to non-Minnesota entities conducting activities in other states, especially where such entities may be subject to other licensing requirements. Here, MediaSentry does not operate in the State of Minnesota and conducted no investigation within the State of Minnesota that could possibly subject it to the State’s licensure requirements. MediaSentry has no employees in the State of Minnesota and does not conduct any activities in the State."

Camara also made the claim that it was illegal for MediaSentry to record even basic information like IP addresses as part of its work, since such behavior basically amounted to operating an unsanctioned "pen register." Pen register devices are used by law enforcement to collect routing and signaling information, but not the contents of communications. Such devices are often placed on a phone line to find out who a suspect is calling (and being called by) in order to generate more leads.

But, according to RIAA lawyers, laws regulating such devices are "not intended to prevent individuals who are receiving communications from recording information sent to them. If that were the case, standard computer operations that require recording of IP addresses supporters may communicate over the Internet would be prohibited and the Internet could not function."

Bottom line: "If simply recording an IP address and metadata sent to someone over the Internet was illegal, copyright holders would be unable to protect their content on the Internet."